How Human Rights Groups Misinterpret Drone Strikes

Two recent drone strike reports by Amnesty International and Human Rights Watch mean well, but important factual errors cloud their judgment. Civilian casualties alone are not war crimes. By Joshua Foust

This week, two major reports by international human rights organizations have called into doubt the legal and ethical frameworks of drone strikes carried out by President Obama. Amnesty International and Human Rights Watch profile specific drone strikes in Pakistan and Yemen, respectively, and in doing so cast a critical eye on the human costs of U.S. counterterrorism operations.

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Joshua Foust is a freelance journalist who covers national security issues and edits the State of Play collection at Medium. He is a former senior intelligence analyst for the Pentagon.
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But are the pictures they construct accurate representations? It is clear that innocent civilians have been hurt and killed in drone strikes, and Obama’s response to those casualties has been lacking. But the existence of civilian casualties is not automatically evidence of illegality or a war crime. Moreover, in at least some cases, it appears these organizations, while laudably advocating on behalf of innocent victims of conflict, are getting important facts wrong about drone strikes. The resulting incomplete picture casts an uncharitable light on a program that, while far from perfect, White House officials argue is one of the most effective, low-impact tools in the global struggle against violent extremism.

Take the Human Rights Watch report about Yemen. One of the incidents they highlight — the Dec. 17, 2009, cruise missile barrage into al-Majalah that killed scores of civilians along with 14 members of al-Qaeda in the Arabian Peninsula — wasn’t even a drone strike. Another strike they profile even seems to have been carried out by Yemeni jets, not American drones.

Human Rights Watch argues that some of the munitions the U.S. uses to strike at targets in Yemen are inhumane or violate norms of warfare (in particular the alleged use of indiscriminate cluster munitions in the al-Majalah strike). But they downplay or ignore important aspects of how drone strikes take place. The strike on al-Majala was meant to take out a senior AQAP figure, Muhammad al-Kazami. But rather than striking at an AQAP training camp, as the U.S. officials who approved the strike had apparently assumed, it turned out al-Kazami was the guest of honor at a local Bedouin camp. The resulting deaths, which included almost two dozen children, reportedly “shook” Obama and John Brennan, his then-counterterrorism advisor and current CIA director. As a result of that strike, Obama directed then-National Security Adviser Gen. James Jones to issue a memo restricting the circumstances in which strikes against al-Qaeda could take place.

HRW does not acknowledge the fact that the al-Majala strike is an exception to how strikes normally happen in Yemen. Similarly, they do not credibly support the charge that the other strikes they profile are illegal under international law. In an armed conflict, strikes generally must adhere to three principles: distinction (telling the difference between militants and civilians), necessity (whether a target is sufficiently important to warrant a strike) and proportionality (the size of the strike matches its importance). In their report, HRW argues that any civilian caught in the crossfire, even if they are assisting AQAP terrorists, makes a strike either unnecessary or without distinction. In effect, they redefine all air strikes, no matter the size of the warhead or its precision, as disproportionate and therefore illegal.

The alternative, however, misses the political complexity of the drone campaign in Yemen. HRW criticizes some drone strikes against figures that they assert could have been captured. Put simply, it’s much more difficult and dangerous to go in and capture terrorist figures — something both Yemeni and American officials discuss openly. It is just too politically risky for the Yemeni government and too dangerous for U.S. personnel. HRW, in contrast, asserts individual targets, while part of AQAP, are not militarily important enough to warrant a strike. Yet they hardly have access to the same intelligence that guides U.S. targeters. Because AQAP has killed thousands of Yemenis and attempted at least three attacks on the U.S. homeland, the idea that even low-level active members are not militarily important enough to strike stretches credulity.

Drone strikes are deeply unpopular in most of Yemen, however. And while it is clear non-combatants have been killed in those strikes, it is far from clear that the presence of those non-combatants is evidence of a war crime.

Amnesty International runs into a similar problem with their report on Pakistan. It’s clear that one of the cases they profile, a 68-year old grandmother named Mamana Bibi who died in an air strike, is tragic. But they present it as representative of strikes in Pakistan. And Amnesty’s version of what happened is sharply at odds with other accounts of that drone strike, which also reportedly killed at least three militants. Amnesty quotes family members saying there were no militants nearby, but they also noted in their introduction that residents of the area are often intimidated into silence when militants threaten them for speaking with outside researchers. A Pakistani official tells them that a Taliban militant probably was identified by his cellphone, but Amnesty researchers assert in their response that the old woman was in a field and not near the road where the Pakistani officials says the cellphone signal was identified. More worryingly, the combat forensics Amnesty presents do not match up. They write that Mamana Bibi’s grandchildren saw drones “flying in pairs, sometimes three together.” Those drones supposedly fired one hellfire missile at an old woman picking vegetables, and, according to one of the people they interviewed, a second missile a short time later at “a vacant area of the field.” Later, they show a photograph of unmarked debris handled by family members, which they say is from a Hellfire missile.

There are several problems with this account. From a technical standpoint, drones cannot fly in pairs or groups of three. As reporter David Axe explained, neither MQ-1 Predators nor MQ-9 Reapers can fly in formation with each other because their operators, who sit in trailers thousands of miles away, do not have the visibility to be able to do so safely. The U.S. Air Force has only recently prototyped the technology to allow drones to fly together, but it has barely begun the initial testing phase.

Secondly, it’s not entirely clear that the debris in the photo is from a Hellfire missile, nor is it clear that that’s the actual debris from the strike, since Amnesty claims it was “provided by the family.” There was no chain of custody or forensic examination of the wreckage.

Lastly, there is the tactical account of the strike itself. For Amnesty’s account to be true, a drone operators would have seen a lone elderly woman picking vegetables outside, surrounded by her grandchildren, with no militants nearby, and made a conscious decision to kill her and an unoccupied patch of ground nearby. That is sharply at odds with previously published accounts of drone rules of engagement within the Obama administration. Either the White House is misleading the public about how it flies drones, a drone operator violated U.S. rules or Amnesty was fed false information.

Both groups also downplay other forms of violent conflict in these regions. Both Yemen and northwest Pakistan have politically complex ecosystems of violence where U.S. air strikes account for a minuscule percentage of casualties. The highest estimate of deaths from U.S. drones in Pakistan hovers around 3,000 since 2004; in the same time period fighting between the Pakistani military and al-Qaeda and Taliban militants has killed nearly 40,000 civilians and displaced more than three million. In Yemen, Doctors Without Borders recently suspended operations in Aden — not because of U.S. drone strikes but because of other violence nearby that make it too dangerous.

Nevertheless, American actions receive the lion’s share of international concern. Moreover, both groups purport to single out drone strikes as unique causes of psychological trauma even while acknowledging that militants on the ground living in these same communities summarily execute those they suspect of cooperating with America.

That does not erase the human trauma HRW and Amnesty are documented. Innocent people are caught up in these conflicts, and Americans should not ignore or discount the existence of unfathomable suffering taking place there. But they should also be certain to accurately diagnose that suffering — something neither HRW nor Amnesty have done.

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Joshua Foust is a freelance journalist who covers national security issues and edits the State of Play collection at Medium. He is a former senior intelligence analyst for the Pentagon.
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